Teachers, “Tenure,” Due Process, and Truly Helping Disadvantaged Children

This month, a California judge struck down California’s teacher tenure law in a landmark case, Vergara v. California. Proponents claim that eliminating tenure will mean fewer ineffective teachers at low-performing schools. But teacher tenure in the K-12 context does not mean a lifetime guarantee of a job. It means that teachers have basic rights—most importantly, the right to due process if the district wants to fire them. This distinction is critical, both because eliminating tenure does not necessarily make it easier to fire bad teachers, and because tenure can actually help attract good teachers to hard-to-staff schools, retain them, and support their role as voices for student justice in those schools.

There have been many good commentaries on why the Vergara ruling will do little to help students. Washington Post columnist Catherine Rampell nails the essential point, writing, “Making it easier to fire bad teachers isn’t going to magically cause the educational achievement gap to disappear. You need to be able to attract and retain more good teachers, too.”

New York University professor (and EPI board member) Pedro Noguera notes in the Wall Street Journal that both the plaintiffs’ suit and the judge’s verdict are fundamentally flawed. Noguera agrees that there are disparities in teacher qualifications and quality between schools serving high- versus low-income students, but tenure does not contribute to these differences. The fact is that schools serving low-income students have less funding and fewer resources than schools in more affluent areas. That means they aren’t able to pay teachers as much. It means class sizes are larger, nurses and counselors are fewer, libraries are worse. These and many other factors make it harder for low-income schools to attract and retain good teachers. The due-process protections afforded by tenure, at the very least, ensure that teachers who do stay in high-poverty schools can speak out against these inequities and be advocates for a more just system for their students.

“Racial segregation continues to bedevil American society and is closely coupled with rising income segregation. Concentrations of poverty have much more to do with why poor and minority students often end up with the worst teachers than do tenure laws. If the plaintiffs were genuinely concerned about connecting great teachers with poor and minority kids, they would go after that problem not the due process rights of teachers.”

Vergara won’t do anything to end concentrated poverty or desegregate California’s schools. Nothing could be more ironic than calling Vergara a civil rights victory. Calling it a “bastardization” of Brown v. Board, as Kahlenberg puts it, is a lot closer to the mark.

Other commentaries are even more pointed in their criticism. Michael Hiltzik sarcastically says that tenure must be the reason for California’s troubles, and “not the imbalance of financial resources between rich districts and poor,” nor “the social pathologies—poverty, joblessness, racial discrimination, violence—that affect educational attainment in disadvantaged communities,” and “not California’s rank at the very bottom of all states in its per-pupil expenditures.”

Scott Lemieux writes that Vergara not only takes aim at the wrong target, it actually harms the low-income and otherwise disadvantaged students it purports to save. “Treu simply assumes, not only without evidence but in the face of logic and reasons, that there is a group of highly skilled teachers waiting to fill the least desirable teaching jobs in the California school system,” he writes, “despite the fact that these aren’t particularly remunerative and, thanks to Treu, now must also be insecure.”

The common thread running through these thoughtful critiques is the reality that the most significant problem facing struggling schools—in California and across the country—is not getting rid of a handful of bad teachers, but, rather attracting and retaining the good ones we desperately need. The process for removing those bad teachers is clearly flawed in many places, worse in California than most. There are certainly positive changes that could be made to tenure laws. As Jesse Rothstein discusses in a detailed op-ed in the New York Times, there are pros and cons of granting tenure at two versus three, four, or five years. And many teacher unions must do better in helping affect needed improvements. In fact, California just passed a law—backed by the state union—that streamlines the process for getting rid of weak teachers without stripping the rights of the vast majority.

Addressing the core drivers of these schools’, and students’, problems requires working in close partnership with teachers and unions. The vast majority of teachers are doing yeomen’s work under very difficult conditions; improving education means improving those conditions, making teaching in the schools that need strong teachers more attractive, and supporting those teachers to help them improve their craft. That is what the activists behind Vergara should be after, were they not backed by a multi-millionaire with an anti-union agenda. These are policy changes that teachers, and their unions, would welcome, and they are changes that could potentially achieve some of what Vergara is likely to undo, if it is upheld.

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EPI is an independent, nonprofit think tank that researches the impact of economic trends and policies on working people in the United States. EPI’s research helps policymakers, opinion leaders, advocates, journalists, and the public understand the bread-and-butter issues affecting ordinary Americans.